New Social Media Opinions: West Virginia and Colorado

Recently, two more states, West Virginia and Colorado, joined the legal ethics conversation regarding social media, issuing opinions that are generally consistent with most other states’ social media opinions.

In September 2015, the Lawyer Disciplinary Board of West Virginia issued new social media and social networking guidelines titled “Social Media and Attorneys.” Specifically, the Board addressed the following topics: attorney competency, taking down posts, avoiding contact with represented persons, contacting unrepresented persons, monitoring third-party reviews and endorsements, protecting confidentiality, honesty in endorsing other lawyers, researching jurors, friending judges, and avoiding inadvertent lawyer-client relationships. The Board concluded in part that attorneys may not make statements on social media that the attorney knows or reasonably knows will be disseminated publicly and will have “a substantial likelihood of materially prejudicing an adjudicative proceeding,” subject to certain exceptions listed in the rule on trial publicity. Additionally, the Board opined that attorneys may accept client reviews but must monitor the reviews for accuracy. Regarding advising clients on their social media presence, the Board concluded that attorneys may advice their clients to change the privacy settings of their social media pages, but attorneys may not instruct their clients to “destroy, alter, or conceal any relevant content on their social media pages.” Instead, attorneys must take the appropriate steps to preserve the information in the event that it is discoverable or relevant to the clients’ cases.

Also in September 2015, the Colorado Bar Association Ethics Committee issued its opinion titled “Use of Social Media for Investigative Purposes.” The Committee concluded that investigation of public profiles and posts is always permitted. Limits apply, however, when permission is requested to view restricted or private content. The opinion addresses ethical issues that arise when lawyers, either directly or indirectly, use social media to obtain information regarding witnesses, jurors, opposing parties, opposing counsel, and judges.

Both West Virginia and Colorado came to the following conclusions, among others: Regarding attorneys reviewing jurors’ Internet presence, attorneys may review public sections of a juror’s social networking presence, but may not attempt to access private sections of a juror’s social media page or use the assistance of a third party to do so. Moreover, attorneys may not seek to communicate ex parte with a judge through social media concerning a matter or issue pending before the judge. The Colorado opinion further states that attorneys may not request permission to view restricted portions of a judge’s social media profile while the judge is presiding over a case in which the lawyer is involved as counsel or as a party.

In a nutshell, both opinions conclude that lawyers must comply with the ethics rules when using social media just as when using other forms of communication.

To read the full West Virginia opinion, click here. To read the full Colorado opinion, click here.

Judges on Facebook: Exercising First Amendment Rights or Violating the Judicial Canons?

There is no doubt that since the inception of Facebook in 2004, various other social media networks have sprung up allowing people to share and exchange information instantly. As of the second quarter of 2015, Facebook had nearly 1.49 billion monthly active users.[1] Originally a social networking website geared towards college students, Facebook has grown to market its services to people of all ages, backgrounds, and professional occupations. As social media continues to become a part of people’s everyday lives, many have predicted that this is a long-term trend that will be continuously refined so that people turn to interacting and behaving online as they do in their everyday lives. But with this dependency on online social networking comes potential consequences that can affect many groups of people, including the legal profession.

The American Bar Association reported in its most recent Legal Technology Survey that about 62% of law firms maintain social networks. This can include, for example, LinkedIn, Facebook, Twitter and Instagram. In fact, 78% of individual lawyers maintain one or more social networks, and spend on average 1.7 hours per week using these sites for professional purposes.[2]

But what about in the courtroom? Is it ethical for a judge to use social media to comment and express his or her opinion on a case unfolding in the judge’s courtroom? Unfortunately for one District Court judge in Texas, Facebook updates about a trial over which she was presiding resulted in a reprimand by the State Commission on Judicial Conduct.

This story began during the criminal jury trial of State v. David M. Wieseckel, which was held in Judge Michelle Slaughter’s court. The defendant, Wieseckel, was charged with unlawful restraint of a child for allegedly keeping a 9-year-old boy in a wooden enclosure.

Judge Slaughter’s social media saga began a few days before the commencement of the trial when she posted on her Facebook page: “We have a big criminal trial starting Monday! Jury selection Monday and opening statements Tues. morning”. However, it wasn’t until after the first day of testimony when Judge Slaughter posted several comments on her Facebook page that ethical issues allegedly emerged.

The following are the Facebook comments that led defense counsel to file a motion to recuse Judge Slaughter from the case:

“Opening statements this morning at 9:20 am in the trial called by the press ‘the boy in the box’ case.”

“After we finished Day 1 of the case called the “Boy in the Box” case, trustees from the jail came in and assembled the actual 6”x 8’ box inside the courtroom!”

“This is the case currently in the 405th!” [This post included a link to a Reuters article entitled “Texas father on trial for putting son in a box as punishment”].

The issue raised about these comments was that the box to which she referred had not yet been admitted into evidence at the trial.

As a result of these comments, defense counsel filed motions to recuse Judge Slaughter from the case and for a mistrial and she was removed from the Wieseckel case. The case was transferred to another court and the judge in that court granted the defendant’s motion for mistrial. Judge Slaughter’s behavior was criticized on social media despite her argument that she made her comments with the intention of promoting transparency and to encourage individuals to come watch the proceedings.

The State Commission on Judicial Conduct (Commission) did not share the Judge’s perspective. After considering the relevant standards of judicial conduct, including Canon 3B(10) of the Texas Code of Judicial Conduct and Canon 4A, the Commission concluded that Judge Slaughter’s comments “went beyond providing an explanation of the procedures of the court” and instead “highlighted evidence that had yet to be introduced at trial”. Further, the Commission stated that “Judge Slaughter cast reasonable doubt upon her own impartiality and violated her own admonition to jurors by turning to social media to publicly discuss cases pending in her court, giving rise to a legitimate concern that she would not be fair or impartial in the case”.

On April 20, 2015, the Commission issued a Public Admonition and Order of Additional Education to Judge Slaughter requiring her to obtain four hours of instruction, with a mentor and in addition to her required judicial education, on the proper and ethical use of social media by judges.

Judge Slaughter appealed the sanction to a special court of review based upon First Amendment claims. On July 20, 2015, Justice Charles Kreger of the 9th Court of Appeals, Justice Gina Benavides of the 13th Court of Appeals, and Justice John Bailey of the 11th Court of Appeals heard arguments and evidence in the trial de novo. The crux of Judge Slaughter’s argument is that this particular proceeding is going to chill the exercise of the right to free speech as the matters that occur within the courtroom are of public concern. The Court of Appeals has not yet issued its decision.-This case is a prime example of the tension between the First Amendment and the judicial canons that may arise when the judiciary engage in social media however well-intentioned.

[1] http://www.statista.com/statistics/264810/number-of-monthly-active-facebook-users-worldwide/

[2] American Bar Association, 2014 Legal Technology Survey Report, available at http://www.americanbar.org/groups/departments_offices/legal_technology_resources/publications.html

Florida Bar Releases Best Practices for Effective Electronic Communication

The Florida Bar has released guidelines for electronic communication that consider issues of professionalism and legal ethics that may arise when an attorney uses texting, emailing, a smart phone, and social media in his or her practice. The best practice suggestions range from considering client confidentiality to understanding technology to practical suggestions for responding to an “angry email.”  To read the Florida Bar’s Best Practices for Effective Electronic Communication click here.

Florida Professional Ethics Committee: Social Media Advice to Clients–A Matter of Competence

On June 25th, The Florida Professional Ethics Committee affirmed, with some modifications, its January proposed opinion regarding advising a client about removing social media posts prior to litigation and changing privacy settings.  Florida joins several other states in addressing the issue of social media posts that are potential evidence in reasonably forseeable litigation.

Two of the key take aways from the opinion:

“The committee is of the opinion that the general obligation of competence may require [an attorney] to advise the client regarding removal of relevant information from the client’s social  media pages, including whether removal would violate any legal duties regarding preservation of 109 evidence, regardless of the privacy settings.”

An attorney, “may advise that a client change privacy settings on the client’s  social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, the [attorney] also may advise that a client remove information relevant to the foreseeable proceeding  from social media pages as long as the social media information or data is preserved.”

To read the opinion, click here.

Breaking News: Florida Joins the Conversation on Advising Clients to “Clean Up” Social Media

The Florida Bar’s Professional Ethics Committee has just issued Proposed Advisory Opinion 14-1, which discusses the ethical obligations that an attorney has when advising a client to “clean up” the client’s social media pages before litigation is filed. Although there is case law that already addresses the issues of discovery and spoliation as they pertain to social media, the committee distinguished that these cases have only dealt with the issues of discovery and spoliation after litigation had commenced. Here, the committee is tackling the question of what an attorney may ethically advise in the pre-litigation stage.

The committee announced its agreement with the New York County Lawyers Association’s NYCLA Ethics Opinion 745 (2013), which stated that a lawyer may advise a client to use the highest level of privacy setting on the client’s social media pages so that they are not publicly accessible. The committee also agreed that a lawyer may advise a client to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding, so long as: (1) the removal does not violate any substantive law regarding preservation and/or spoliation of evidence; and (2) an appropriate record of the social media information is preserved if the information is known by the lawyer or reasonably should be known by the lawyer to be relevant to the reasonably foreseeable proceeding.

Finally, the committee turned its attention to the Florida Rules of Professional Conduct that are implicated on this issue. It pointed out that the general obligation of competence under Rule 4-1.1 may require an attorney “to advise the client regarding removal of relevant information from the client’s social media pages, including whether removal would violate any legal duties regarding the preservation of evidence, regardless of the privacy settings” (Emphasis Added). And it found that if a client asks an attorney about removing information from his or her social media pages, the attorney must adhere to Rule 4-3.4(a), which states that a lawyer must not “unlawfully obstruct another party’s access to evidence . . . that a lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding,” and that determining what information is relevant is a factual question to be decided on a case-by-case basis.